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HomeMy WebLinkAbout1993-1946.Courte.94-11-07 . - (}'S~~' '" ( -..;.......-:1":. ~;~:~.~.. ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DEL 'ONTARIO 1111 GRIEVANCE COMMISSION DE . SETTLEMENT REGLEMENT BOARD DES/GRIEFS 180 DUNDAS STREET WEST SUITE 2100, TOF/ONTO, ONTARIO. M5G lZ8 TELEPHONE/TELEPHONE (416) 326-1388 180, RUE DUNDAS OUEST BUREAU 2100, TORONTO (ONTARIO) MSG lZ8 FACSIMILE ITEU;COPIE (416) 326-1396 1946/93, 206/94 0 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD 1.. BETWEEN OPSEU (Courte/MacGregor et al) Grievor - and - The Crown in Right of ontario (Ministry of the Solicitor General) Employer BEFORE: \ J. Roberts Vice-Chairperson ) T Browes-Bugden Member Fo Collict Member FOR THE H. Simand UNION Counsel ) Cornish Advocates Barristers & Solicitors FOR THE A. Gulbinski EMPLOYER Grievance Administratrion Officer Ministry of the Solicitor General ~ HEARING September 8, 1994 ) . ~ ~ ( ( INTERIM AWARD / I At the outset of the hearing, counsel for the Employer raised a prelifQ.inary objection to jurisdiction It was submitted that the Grievance Settlement Board lacked jurisdiction to hear the merits of the grievances herein because they were, In substance, classificatIon grievances that had merely been cast in the form of discrimInation grievances. SInce August 1, 1993, it was submitted, both parties had agreed to take no steps to further any claSSIfication grievances under the existing classification system In light of this agreement, counsel submitted, the Union was l barred from proceedIng WIth the grievances at hand Counsel for the Union, on the other hand, submitted that the Union was not barred from advancing the instant grievances because they were, in substance, just what they claimed to be- _ discrimination grievances. The claim In each gnevance, it was pOInted out, was a breach of \ the prohibition of discnmInation on the basis of handIcap under ArtIcle All of the Collective , Agreement. Neither the Social Contract Act nor the implementIng agreements between the \ parties, it was submitted, was intended to have the effect of prohibItIng gnevors from bringing , , claims of discriminatIon on for hearing before the Gnevance Settlement Board. For reasons which follow, we conclude that the Union IS not barred from proceeding with \ the hearing of the merits before this Board. As such, the prelimInary objection to jurisdiction is dismissed v . .,. --:. ('\".;;' ( ~. t ".:<.~ '''~ :...:t.... '1:>' 2 II Neither party submitted any evidence upon the prelIminary objection in the present case; however, certain representatIons of facti were made by both counsel In their opening statements I and it was agreed that for purposes of decIdmg the prelImmary obJectIon, the Board was entitled to rely upon these representations. From these, it seems that the five grievors in this case constitute the entire complement of bargaimng unit members in the radio room of the Queens Park Detachment of,the Ontariq Provincial Police. One of the gnevors, Ms Allanna Courte was clasSIfied as a Communication Operator 2 (C 0 2) and acted as a lead-hand type Supervisor; the other four were in the classification of CommunicatIon Operator 1 (C 0 1 ) and acted as radio operators for the detachment. I I - '\ It seems that this detachment was set. up in 1986 as an affirmative action 'programme for disabled individuals. Able bodied indIviduals were only hIred into the radio room if there were \/ no qualified disabled applicants. The grievors claimed that the Ministry had discriminatedagamst them on the basis of disability by paying them at lower wage rates than all of the other radio operators in the Ontario \ Provincial Police. As far as the four radio operators knew, they were the only dispatchers in the province at the C 0 1 level All others in the province were at the C02 level. In Ms Courtes' case, she had been paid at the C 0 3 level up until 1991, when the supervisory job was y ( \. . -\:,<H l~ 'r ':-~ '. ( f , ( r' I I .to" -? ':'>0<"' r ( 3 posted as a permanent position At that time, the job was down-graded to the level of C.O 2 although the duties and respo~sibi1ities remained the same. Counsel for the Union stated that if we proceeded to a heanng upon the ments, the ) Umon's position woul!1 be that the duties and r.esponsIbilItIes of the gnevors were valued at a l lower level than those of other dispatchers In the Ontario PrOVinCIal Police because of a perception related to their disabilities. It was assumed, counsel submitted, that the grievors could not do as much as other dispatchers because they were dIsabled l Counsel for the Employer vigorously dIsputed the assertIOns of counsel for the Umon. If this matter were to be heard upon Its merits, counsel saId, the eVIdence would show that the ( classifications assigned to the jobs of the grievors were determined before anyone knew that they , were going to be affirmative action positions. In this regard, counsel submitted, the work of the radio room In the Queens P'V"k Detachment is significantly dIfferent from that in the field. In Turning to the preliminary objection, counsel for the Ministry primarily relied upon l several proviSIOns of the Local Appendix to \ the Sectoral Framework Agreement between the parties of August 1, 1993 This agreement, in turn, was negotiated to assist in implementing - the Social Contract Act, 1993 SO, ch 5 The prOVIsions of the Local Appendix that were primarily relied upon were as follows. ..J ) '7;:,~.~~:.F,i:. j' -1'- I I c. c " 4 8. The parties agree that aU cl3,$Sification grievances ~nder the Crown Employees Collective Bargaining Act or under a collective agreement between the parties fLIed by or on behalf of employees in the bargaining unit of public servants represented by the Union for which- a decision of the Grievance Settlement Board has not been rendered by August It 1993 are withdrawn effective August It 1993 and the parties shall take no steps to further any such grievance of any hearing of such a grievance and shall take no steps to enforce any decision of the Board pertaining to any such grievance after August 1 t 1993. A 9. The parties agree they shall take no steps to further any classification grievances under the Crown Employees Collective Bargaining Act or under a collective agreement between the parties filed-after August It 1993t except for an.y classification grievances in respect of a new classification system in which such grievances are expressly allowed. 10. For the purposes of this agreementt and, in particular paragraphs 5 and 6 - abovet "classification grievances" iilcludest but is not limited tOt \ (a) all grievances claiming improper classification of persons classified within the Office and Administration Group of the classification system of the Employer. (b) all grievances claiming improper classification of persons within the classification system of the Employer in which part of the settlement desired is the making of a new classification or classification standard, and (c) all grievances claiming improper classification of persons within the classification system of the employer in which part of-the settlement desired is the reclassification of thegrievor or grievors to an existing classification standard that properly applies to hOOt her or them. Counsel also cited in support of its position Re Aitken and Ministry of Health (1993), G S B. No 678/87 (Gorsky) ) With respect to the Local Appendix, counsel directed our attention in particular to paragraph 9, which stated in pertinent part that the parties agreed to "take no steps to further ( . ~-- ,(. ~.. . (L ( ,;.,~~!".. 5 \ "- any classification gnevances." The parties further agreed in paragraph 10 (c), counsel pointed out that as used in the agreement, the expression "classIfication grievances" included "all grievances claiming improper classIficatlon in which part of the settlement desired is the I reclassification (0 an eXIsting claSSIfication standard II Moreover, counsel submItted, In AItken, ~, the Board werh even further in defining what constituted "classification grievances" for purpQses of the Local Appendix The Board said, "We would regard classificatIon gnevances as includIng grievances that can only be decided if the Board must render a decision with respect to the proper claSSIfication of a grievor I at some point in time." Id at 22 It was sulbmitted that in light of the words of the Local Appendix and the broad definition of "classification grievances" employed by the Board in Aitken, the grievances at hand were inarbitrable because they constituted, in substance if not form, classification grievances within the meaning of the Local Appendix. T~ere was not doubt, it was submitted, that if the Board were to proceed to hear the merits of the grievances, it would necessarily be drawn into deciding whether the grievors had been properly classified. ThIS would, it was submitted, contravene the intent of the parties, as reflected in the, Local AppendIX, to freeze all classification grievances under the existing classification system pending the development of a new system and would, in fact, contravene the Board's own jurisprudence upon the matter as reflected in the Aitken deciSIOn . --.-- ~"t~.::~.l"r~-"; ,~,' \":'"~ :,;;r' 0" I ( c- " \ 6 Counsel for the Union, on the other hand, submItted that the grievances were bona' fide. claims of discrimination on the basis of handicap, as defined in section 10 (1) of the Ontario Human Rights Code. These claims, it was submitted, raIsed an important public policy issue as reflected in the stature of the Ontario Human Rights Code In relation to other provIncial ~ legislatIon Moreover, it was submitted, the SOCIal Contract Act Itself reflected thIS stature of the Human Rights Code in sectIon 6 thereof, WhICh stated, "Nothing in this Act shall be interpreted or applied so as to reduce any fIght or entItlement under the Human RIghts Code or under the Pay Equity Act." In lIght of thIS, it was submItted, the Local Appendix to the Sectoral Framework agreement of August 1, 1993 could not be interpreted so broadly as to derive a i contractual intent on the part of the parties to lImIt In any way the advancement to arbitration I of discrimination grievances under Article A~ IV I Before addressing these submissIons, we would lIke to express our appreciatIon to both counsel for the qualIty of their submIssIons. In the end, however, we have concluded that the preliminary objection must be dismissed We begIn wIth ArtIcle A I I of the Collective /, Agreement, which reads as follows. ARTICLE A - NO DISCRIMINATION/EMPLOYMENT EQUITY A.I.I. There shall be no discrimination practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status" or himdicap, as dermed in section 10 (10) of the Ontario Human Rights Code (OHRC). . ~ ".' - . - t t ~~; ~"'" '. .':' ~-..:r. ' '1'-- ......... ~ ~.~, . .J;:~f:,:;'<'~' T'>~ 7 This IS a broad prohibition of discrim.inatlOn whIch Incorporates by reference the prohibited categories of the Ontario Human Rights Code, includIng dlSCnmInatIon by reason of handicap This reflects a determInation by the partIes to prOVide a remedy by way of grievance arbitration j \ to supplant the often cumbersome and time consuming process perceived to be accorded ~ complaints to the Ontario Human Rights Commission Next, we consider the impact of sectIOn 6 of the SOCIal Contract Act. WhIle this provision does not expressly prohibIt applIcatIon of the SOCial Contract Act to reduce a collective I agreement right, it does prohibit any application of Its terms that would reduce any right under ) the Human RIghts Code. Th).s IS a strong prOVISIon, essentIally gIVIng overriding importance to the preservation and promotion of human rights. ~ In light of these' indIcia of the importance given by both the government and the parties to human rights, it seems to us that it would take clear and specific languag~ in any agreement reached by the parties to cut down the nghts of employees to advance to arbitration gnevances claiming discrimination under Article A of the Collective Agreement. Upon reviewing paragraphs 8, 9 and 10 of the Local Appendix, we do not find such language. Under paragraph 10 (c) of the Local AppendiX, "classlfi~tion grievances" include "grievances claiming improper classification in which part of the settlement desired is ) reclassification." To fall within this defimtion, then, a grievance must (1) claim improper . .0._. ~,.,.....: ,-;::;J.~ ~,~ :f.';'''f7:r..:;.;r.'';j-~~m-: ( \ C""''',,:,, ./ 8 \ classification, and, (2) seek as part of the settlement, reclassification In the present case, the grievances do not claim reclassificatIon They claim discrimInation Nor do we think, as suggested by counsel for the Mmistry, that in substance, the ~ \.. ., grievances claim improper classificatIon It seems to us that a claim of dIscriminatIon mIght- involve the consideration of evidence and issues far beyond those to be found in the usual classification grievance. For example, evidence mIght be called bearIng upon the issue of discriminatory lOtent, e.g , memoranda, letters or statements made by those who originally classified the position indicating a generalIzed view that all handicapped persons were not capable of performing at the same level as other dispatchers. EVIdence of lack of discriminatory intent has already been hlOted at by counsel for the Ministry, e.g , the lOdication of counsel that the jobs of the grievors were classified before it was known they would become part of the affirmatIve action programme and the potentIal request that the Board take a view of the facilities to determine the degree to which they dIffer from other dIspatching facihties in the Ontario Provincial Police. Turning to the submission of counsel for the MiOlstry regarding the i~pact of the Aitken I decision, we note at the outset that every statement made in an arbItration award must be consIdered in context and that the factual context of AItken was very different from that of the present case. In Aitken, the grievors actually claimed that they had been improperly classified at a particular moment in time. Counsel for the UOlon submitted, however, that this claim did not affect the arbitrability of the grievances because later on, the grievors were properly { . . ~ --- ~ -r;-;.--~- ~ .' I ( ! I ~.;~{g~. \~. -. 9 classified. This, it was submitted, reduced the remedy claimed by the gnevors from that of ~ reclassification to placement at a higher level on the salary grid within a claSsification. The Board concluded, however, that its decision regarding proper placement upon the I salary grid would turn virtually entirely upon determining whether the gnevors were improperly , classified before theIr reclassification took place. The conclusIOn was inescapable that they were, m fact, classification grievances. See id at 22 It can be seen from this brief summary of Aitken that the Board dId ,not have before it a substantial claim of dIscriminatIon under ArtIcle A of the CollectIve Agreement. Moreover, as we have already noted, the decision in }his case may well turn upon issues related to discrimination and not merely a ~omparison of duties and responsibilities in different classificatIons. Further, we note that the grievors in Aitken were claSSIfied WIthin the Office and I Admimstration Group (OAG) of the classIfication system whlle the gnevors herem are not. The - definition of "classification gnevances" that applied to the gnevors in AItken was found in paragraph 10 (a) of the Local AppendIx to the Sectoral Framework. This defined OAG classification gnevances essentially as "all gnevances claimmg improper classification." Accordingly, it was appropriate for the Board to decline jurisdiction once it determined that the grievances, in fact, claimed improper classification ---- ." j, t'""':;d " \' ~~. ~.~.,~ ~"';'''''', \~7t~JJ:~l; 10 In the present case, we have determined that while reclassification issues may arise in a hearing upon the ments, the grievances essentially constitutes substantial claims of discrimination and our decision will turn upon whether discrimmation on the basis of handicap is established In order to constitute the present grievances as "claSSIfication grievances" within the meaning of the Local Appendix, they would have to fall within paragraph 10 (c) thereof, which reqUIres the gnevances (1) claim improper classification, and, (2) desire as part of their settlement the reclassification of the gnevors to existmg claSSIficatIOn standard. It is not enough that, as here, reclassification is desired as part of the settlement. The gnevances must also claim reclassification That IS not the case here. For all of the above reasons, we conclude that the preliminary objection to jurisdiction must be dismissed. Either party may apply to the Registrar of the Grievance Settlement Board to schedule a hearing upon the ments in thIS case. DATED at London, Ontario, this 7th day of November, 1994 oJ <..---...--- Roberts, Chairperson \ ... T ~ rJ C/ F Collict, Employer Member . - " ....~........_..........~_._._ "_ ... _ ____4. ....r. . "'. _ ~~,~ _ _ __. ..j, _ . -- -- -